6.  On an unspecified date the applicant company was sued in relation to its failure to honour a contractual obligation, namely to construct roads and keep them in a good state of repair. On 27 June 2003 the first-instance court found against the applicant company and gave it three months to execute the works. The decision was confirmed, in part (in relation to certain roads), on appeal on 25 February 2005 by the Court of Appeal sitting in a three judge formation.
7.  On 17 May 2005 the applicant company lodged a request for retrial under Article 811(e) of the Code of Organisation and Civil Procedure (“COCP”) (see Relevant domestic law below), and a request for a stay of execution of the judgment under Article 823 (2) of the COCP, pending the decision on the retrial request.
8.  On 3 November 2005 the Court of Appeal, sitting in the same composition as in the appeal on the main proceedings, rejected the request for a stay of execution. It considered that the bank guarantee of 100,000 Maltese liras (“MTL”) offered by the applicant company was not a sufficient guarantee for the execution of a judgment which might involve expenses amounting to MTL 400, 000. A further request by the applicant company to be allowed to lodge the sum of MTL 400, 000 was also rejected on the same day.
9.  On 9 November 2005 the applicant company requested the Court of Appeal to reconsider the said decision and asked for its revocation. It invoked Article 229 (4) of the COCP (see Relevant domestic law below). The matter, yet again, fell to be heard before the same composition of the Court of Appeal which gave the decision appealed against. The applicant company therefore lodged a request for the withdrawal of the three judges, under Article 734 (1) (d) (ii) of the COCP, on the basis that they could not be considered impartial since they had determined the merits of the claim subject to “appeal”.
10.  On 14 December 2005, the Court of Appeal, in the same composition, dismissed the applicant company’s request for withdrawal and declared the appeal null and void. It held that a request for reconsideration under Article 229 (4) of the COCP did not require the said judges to withdraw. On the contrary, it implied that the case had to be reconsidered by precisely the same judges, and the claim was therefore frivolous and vexatious. As to the appeal, it considered that the decision of 3 November 2005 amounted to a final judgment against which no appeal lay, it being covered by Article 227 and not 229 of the COCP (see Relevant domestic law below).
11.  On 2 April 2006 the applicant company instituted constitutional redress proceedings, claiming that its appeal proceedings culminating in the decision of 14 December 2005 had not been heard by an impartial tribunal.
12.  On 10 October 2006 the Civil Court in its constitutional jurisdiction found against the applicant company. It considered that, while it was true that the provisions of Articles 227 and 823 (6) of the COCP appeared contradictory, the logical interpretation of the provisions was that an appeal for dismissal of a request for a stay of execution was available only if the decision had been taken by a court other than the Court of Appeal. Had this not been the case, the applicant company would have had reason to question the Court of Appeal’s impartiality. However, the latter court had not reconsidered its decision of 3 November 2005, but abstained from taking cognisance of the request on the basis that it was null and void. Thus, the applicant company’s claim was unfounded.
13.  The Constitutional Court on 17 October 2007 confirmed the Civil Court’s judgment. Noting that it had not been necessary for the Civil Court to enter into the interpretation given by the Court of Appeal, it held that on 14 December 2005 the Court of Appeal had not assessed its own previous conduct. It delivered a decision on a new legal question, namely the legal and procedural question of whether the appeal application was null and void, viz, whether the method of appeal used by the applicant company was one envisaged and allowed according to the COCP. It therefore did not decide on the merits of its previous decision. Moreover, it found that it had not been sufficiently proved that there was a real risk that the relevant judges had been biased. Indeed, the applicant company had not contested the impartiality of the Court of Appeal at the beginning of the proceedings, namely on the basis that the appeal in respect of the decision of 25 February 2005 had also been decided by the same formation of the Court of Appeal. Furthermore, the judicial code of ethics, the judicial oath and the relevant law provisions in respect of withdrawal and abstention of judges offered a sufficient guarantee of impartiality.